By Kumar David –

Prof Kumar David

The Constitutional Reform Proposals (CRP) published under Hamudurovo’s leadership by a group close to him (National Movement for Social Justice, NMSJ) is the most important such intervention in Lanka’s political space since the scuttled year-2000 Draft Constitution. “At last a voice of sanity” is the way it has been greeted. This is not surprising; I think Jayampathy Wickremaratne chaired the drafting committee, while he and Neelan Thiruchelvam wrote the year-2000 Draft, though GL, as is his style, tried to take the credit. Nevertheless, it should be noted, with some regret, that CRP envisages constitutional reform, not for a new constitution ab initio. This draft, after discussion and amendment, can evolve into the all-party, all-community, multi-class manifesto of a “Rainbow Coalition”, to borrow H.L. Seneviretne’s term. Communities (say Tamils), parties (say the JVP), or organisations (civil society and religious) with reservations about blanket endorsement, or unwilling to enter formal electoral alliances, can use it as a template, amend sections, and insert it in their manifestos while retaining the framework. The Tamils can endorse the generic draft, but propose amendments such as devolution, thus retaining their position in the democratic struggle, while keeping up pressure on issues important to their community. CRP is related to, but not the same as the Single Issue (SI) proposal to abolish the Executive Presidency (EP) that I mooted last year. My proposal, took as its point of departure, the argument: Put together the widest possible alliance on a minimum programme, viz: “A single presidential candidate, on an abolish-EP and restore a parliamentary system, platform. Then a constitutional assembly to write a new constitution; thereafter the SI President will step down”. CRP is not inimical to my proposal; it lays down guidelines, to be endorsed by the electorate, as instructions to the envisaged constitutional assembly. No problem I say, except that SI is an indispensable first step to getting there. No new constitution is possible till the Rajapakses are turfed out. Secondly, the more detail you lay down now, the greater the prospect of someone disagreeing on some triviality and dropping out. This may be why CRP is silent on devolution. Was there no consensus among drafters, or was it tactical? Either, points to the quandary I refer to. The devil is in the detailsWho the SI candidate should be remains unresolved. Ranil is hopeless, but more seriously, he has never committed himself to abolishing EP and his relationship to Mahinda is suspect. Chandrika, with a full opposition behind her, is a potential winner, but cannot be trusted. She lied barefacedly, twice, about abolishing EP. Hence Sobitha remains the trustable and winning candidate of choice. Furthermore, he has the political credentials and religious prestige to persuade Sinhala-Buddhists to accept devolution and fair treatment of the minorities. You may deem my fear of divisiveness in Lanka’s political culture excessive; but experience is on my side. Doing the work of the future constitutional assembly, nagging and niggling over irksome details, prior to cementing a unified opposition, is a sure-fire way of clouding-out the Rainbow. Let me quote an e-mail I received, in response to my invitation, from a sharp minded person of sombre judgement. The issues are important, but excessive debate on such details is premature.

 “(1) In my view the substance and spirit of the Soulbury constitution should be the basis of any new constitution (secularism plus, protection for minorities). (2) I am opposed to the mix of the FPP and PR systems. My preference is for a 100% FPP system. The argument against FPP was that it leads to destabilization of policy. If policies are good, the people will re-elect the government, so there is no room for undue destabilization. Combined with elections every FOUR years (not 6 or even 5), FPP will be a good bulwark against corruption, entrenchment and the arrogance of power. I think FPP, combined with the abolition of the EP, will help the structural dismantlement of the present despicable political culture. (3) I think cabinet size should be 15 maximum and not 25 as the Sobitha proposals state.”

Yes, the Soulbury Constitution is superior to the 1972 Republican Constitution on secularism and minority protection, and a discussion of the advantages and disadvantages of FPP versus a PR or a mixed system is most relevant. But I am terrified that Lankan politicos, the opposition included, are of sparse cranial capacity and will wrestle to death over such issues instead of expressing a view, and then leaving it to future public consultation. The same goes for the ceiling on cabinet size; given a choice I too would opt for Ali Baba and 15, instead of 25 thieves. My correspondent, in expressing these views, is too bright to push them to the point of divisiveness. But this may not be the same with everybody. The ageing Vickremabahu Karunaratne has advanced to senility or his attachment to Ranil has matured into an addiction. He has circulated a statement decrying CRP for remaining silent on devolution; this criticism I heartily endorse. Then this one time Vama Samasamajist rants on to condemn it for the: “(F)raudulent ultra-left demand to do away with the Executive Presidency”. Phew! Ranil imagines that one day he will occupy the throne; so, as the scriptures say, John the Baptist has arrived before Him to prepare the way. The need of the hour is to focus every sinew on the primary task of abolishing the Executive Presidency, which is the pedestal of autocracy and the Corporatist State venture. In passant, of course the Rajapakses will have to be ejected. An outline replacement constitution will facilitate the journey, but let us not bicker over details or be distracted from our objective. To modify Samuel Johnson a little: “There must be progress in every debate; the mind opened by degrees; one truth lead to another; error disentangled; and hints improved to conclusions”. Taking the SI challenge forward, and perfecting Hamuduruvo’s CRP document, must proceed in like manner. The missing elephantThere is a huge hole at the heart of CRP. Not a word about devolution! What does the document say about the national question? It declares that both Tamil and Sinhalese should be declared official languages, and English a “link” language. This misconstrues the role of English; primarily it is a window into modernity and the wider world, more than a link – vide modern India. But in keeping with my principle of not quibbling over details, I only mention this and pass on. What does the document say about state power and the minorities? Precious little, and a reflexive tilt towards assuaging Sinhala-Buddhist paranoia is evident. I quote:

“The peoples of Sri Lanka who together constitute the People of Sri Lanka have the right to develop their own language, protect their own religion, to develop and promote their culture, to preserve their history and the right to their due share of State power including the right to due representation in institutions of government, without in any way weakening the common Sri Lankan identity. This shall not in any way be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of the Republic”.

The first phrase up to “. . . institutions of government”, is fine but plain vanilla; you will find it in any decent constitution. Then the paragraph doubles over, repeating phraseology which is only a shade short of explicitly endorsing a unitary state. The double avowal first says “. . . without weakening the common Sri Lankan identity”, and then follows up with a pronouncedly aggressive repetition (“This shall not . . . the Republic”), obviously inserted to reassure the Sinhalese reader that there is not a whiff of the Tiger among the drafters. It would have been entirely different if this sturdy reassurance had been tied to a clear and explicit declaration of devolution of power to minorities. Sans devolution, and sans specific references to the concerns of Muslims, Upcountry Tamils and religious minorities, this section deserves censure for pandering to narrow Sinhala-Buddhist sentiments. The emotional underpinning of the paragraph is hostile to devolution and unsympathetic to the minorities. It would be good to know how many Tamils and Muslims were among the drafters, and how authentic they were as representatives of their communities. However, there is also a separate NMSJ document which is broader based and includes a call for implementation of LLRC recommendations, which recommendations imply a degree of devolution. Hence there still is scope for discussion and amendment. Let us give the benefit of the doubt to the drafters when they say this is only a first draft. I plead that I have not violated my principle of not quibbling about details in raising the devolution issue aggressively. In the context of past ethnic and present anti-Muslim tensions, this is not a detail; it is a serious defect in Hamuduruvo’s CRP document. As Sam Johnson says, let us put it right through discourse and development.